FMLA violations are costly to employers. The fines take money away from the businesses’ profitability and resources from its growth. One of the ways employers can help to ensure compliance with FMLA rules is to conduct a periodic audit. If you are looking for a way to ensure compliance with FMLA guidelines, then an audit is a great way to discover your company’s lapses.
Common FMLA Violations
Sadly, FMLA law has many ways that employers can violate the law. However, there are some common mistakes that employers make. For a full list of mistakes check out this article. Some of those mistakes include:
- Refusing FMLA leave to an eligible employee
- Discouraging employees from using FMLA leave
- Manipulating employee’s work hours to avoid responsibilities under FMLA
- Using FMLA leave or request for leave a negative factor for employment actions such as promotions, hiring, or discipline actions
- Counting FMLA leave under “no-fault” attendance policies
- Failing to recognize leave as FMLA leave
These mistakes can be caught before a Department of Labor investigation through an internal audit. A careless manager can put the entire company at risk through thoughtless comments regarding FMLA leave. It is vital to make sure that your company has the policies and the training in place to ensure FMLA compliance.
FMLA Compliance Checklist
Employers, go through the following checklist to check your companies compliance with FMLA. Remember, most employers don’t intend to violate employment law. It often occurs when FMLA is an afterthought or through human error. Don’t be too busy running your business that you fail to check these major, and common, compliance issues.
1. Have a written and up-to-date FMLA policy:
Your employee handbook is the first defense against FMLA violations. Keep your policy updated to any new changes in FMLA law. Employee handbooks should be distributed and electronically accessible to your employees through an employee portal. Your FMLA policy should include:
- Eligibility requirements for FMLA. Requirements can go over the employer qualification and the employee qualifications. The exact verbiage can be found here.
- Allowed reasons for FMLA. Employees who take FMLA leave for reasons not covered under FMLA are at risk of being able to take additional FMLA leave. Employers should be clear in what reasons are allowed under FMLA leave and how much leave is required. This is a good place to discuss additional leave allowed under the military provisions.
2. Define your (the employer’s) definition of a 12-month FMLA year.
Employers can use a calendar year to determine FMLA qualification, but they can also use any 12 month period. However, that period cannot alter from employee to employee for the employer’s use or to avoid FMLA qualification.
3. Define the requirements for bonding leave due to foster care or adoption placement.
The requirements for FMLA leave due to the placement of a child can be found on the FAQ sheet. Employers can take the language for the requirements from FMLA law. Employees should take leave in the first 12 months after leave is taken.
4. Notify employees of the employer requirements regarding FMLA notice.
Employers can require employees to notify them with a 30-day notice of foreseeable FMLA use. However, this requirement must be communicated to employees in an employee handbook. It cannot be a verbal requirement that the employer superimposes.
5. Outline the employer’s call-in procedures for FMLA leave.
Some FMLA use will not be predictable. IT may occur from an emergency, illness or injury that is sudden. When that happens, employees must know what the policies are and how they can notify their employer of immediate FMLA use.
If the employer requires the substitution of leave with paid leave or PTO. New York, Colorado, California and a host of other states have family leave, parental leave, and other related FMLA state leave laws. These laws sometimes allow state leave and FMLA leaves to be taken concurrently. Additionally, local sick leave laws may allow for paid sick leave to be taken concurrently with FMLA leave. Employers should have a written policy that outlines when other PTO or leave must be taken concurrently.
6. Outline the employee’s obligations under the FMLA process.
Employees should be able to read and understand what their obligations are. If the employer requires fitness-for-duty certifications or medical certifications, this should be included in the handbook.
7. Outline your company’s medical certification process.
An explanation of intermittent leave Employers can also choose to allow a reduced work schedule as part of FMLA leave. These policies should be outlined, including how intermittent leave is calculated and advanced.
8. Outline employee benefits and rights during an employee’s leave.
Employers must maintain employee group benefits during leave. However, employees can also be required to continue to pay the same amount toward their benefits that they were required to pay during regular work schedules. If employees do not make their portion of the premium payments, then benefits can be discontinued. This information should be included in your employee policy.
- Fitness-for-duty requirements.
- Outside work prohibitions during FMLA leave. Employers can have a policy that prohibits employees from working during an FMLA leave. This protects employers incase an employees FMLA leave is denied due to the employee working a second job or starting a new job. Employers without a policy prohibiting work cannot deny FMLA leave if the employee continues to work elsewhere while on FMLA leave.
9. Provide an FMLA packet to give employees:
The packet should include several things:
- Your company FMLA policy
- The DOL’s notice of eligibility and rights and responsibilities
- The DOLs designation notice
- Medical certification forms for health care providers
- Your company’s’ fit for duty certification for when your employee wants to return to work
10. Prominently display the Department of Labor FMLA poster.
This notice informs employees of their rights under FMLA. It should be displayed at all locations of the employers, even if there are no eligible employees at that location.
11. Maintain complete employee records.
These records should include timekeeping records, payroll records, FMLA related records, and other records. For a complete list check out this article (FMLA record-keeping article) and this article. Employers who rely on manual timekeeping are at risk of FMLA violations due to incomplete records. They may also be at risk of having to provide additional FMLA leave if they provide FMLA leave in error to an employee who has not qualified for FMLA leave. Additionally, inadequate records put employers at risk of assumed discrimination if employees are treated differently due to various managers, policies, or positions and inadequate record-keeping.
12. Train managers to recognize when employee absences have FMLA implications.
Employees do not need to specifically request FMLA leave for the employer to be liable for failing to provide FMLA leave. Ask these questions:
- What procedures should managers use when an employee reports and absence that could qualify under FMLA leave?
- Are managers asking the right follow-up questions to determine if an absence is FMLA related?
- Does your company’s regulations make sure that all leave requests reach HR, even if “FMLA” is not mentioned?
- Do managers understand how to calculate FMLA intermittent leave?
- What policies are in place regarding certifications, asking for clarifications from healthcare providers, and seeking second or third opinions?
- Are managers designating FMLA leave and providing timely notice to employees?
- Is the company being over zealous in their recertification and risking violations or are they seeking recertification within the timelines provided by FMLA
- Does the employer have complaint procedures for checking up on an employee while they are on FMLA leave?
- Are managers following the specific regulations when they seek fit-for-duty certifications from employees following FMLA leave?
13. Make sure your attendance policy complies with the Americans with Disabilities Act and the FMLA.
These laws prevent employers from punishing employees for absences related to FMLA. FMLA intermittent or reduced schedule leave is another way that employers can make accommodations for employees with disabilities.
14. Require employees to sign written acknowledgments.
Acknowledgments should outline that employees understand that any payments from short-term disability or workers comp leave run concurrently with FMLA leave. This should also be done if your state adds local FMLA leave that runs concurrently with Federal FMLA leave.
15. Properly designate and manage the use of Intermittent FMLA leave.
Count light-duty work as FMLA leave.
16. Identify the correct individuals as “key employees” when designating their FMLA leave.
Employees should know who to contact when they are pursuing FMLA leave. This also helps with the issue of an employee failing to identify that a subordinate has requested FMLA leave and failing to follow policy. When employees know who they should contact, then they are most likely to get the right assistance. You will also be able to have key specialists within your organization who are trained to better understand FMLA leave and its paperwork requirements.
17. Have a medical leave policy for employees who are eligible for FMLA leave.
FMLA law requires employers to maintain group health benefits for employees who take FMLA leave. Employers can require employees to pay their regular portion of their health care premiums while on leave. They cannot require FMLA leave employees to pay a portion that other regular employees are not required to pay. Employers can require employees to pay that portion before commencing leave, while on leave, or when they return to work. However, employers should define this policy in writing.
FMLA can feel complex, but it doesn’t have to be. Conduct an FMLA audit regularly and make sure that your managers are educated around how to respond. Then, when you have employees who may qualify for FMLA leave, the process can run smoothly and stay in complete compliance.
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